United States District Court, N.D. Texas, Wichita Falls Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR. UNITED STATES MAGISTRATE JUDGE
the Court is Pablo Gonzales, Jr.'s
(“Petitioner”) 28 U.S.C. § 2254 habeas
corpus petition (ECF No. 1) filed on January 22, 2018;
Memorandum in Support (ECF No. 9) filed on February 27, 2018;
Respondent's Response (ECF No. 16) filed on June 8, 2018;
Administrative Records (ECF Nos. 18-20) filed on June 8,
2018; and Petitioner's Traverse Brief (ECF No. 24) filed
on September 24, 2018. After considering the pleadings and
applicable law, the undersigned RECOMMENDS
that United States District Judge Reed O'Connor
DENY Petitioner's petition (ECF No. 1).
January 29, 2015, Petitioner was convicted of one count of
aggravated sexual assault and three counts of indecent
contact with a child in the 90th Judicial District Court of
Young County, Texas. (ECF No. 1 at 2; ECF No. 9 at 1).
Following his conviction, Petitioner filed a direct appeal in
the Second Court of Appeals in Fort Worth, Texas, which
affirmed his conviction on September 24, 2015. (ECF No. 1 at
3). He filed several petitions for discretionary review
(“PDR”) in the Texas Court of Criminal Appeals
(“TCCA”) (see cause nos. PD1398-15;
PD1399-15; PD1400-15; PD1401-15). (Id.). These
petitions were denied on December 16, 2015. (Id.).
Petitioner filed several state habeas corpus petitions
(see cause nos. WR-85, 344-01; WR-85, 344-02; WR-85,
344-03; WR-85, 344-04) in the 90th Judicial District Court of
Young County, Texas. (Id.). These petitions were
denied in November 2015. (Id. at 4). He also filed a
PDR in the TCCA. (Id.). The TCCA denied his petition
without written order on May 24, 2017. (Id.).
has now filed this § 2254 habeas corpus petition.
(See ECF No. 1). He argues that: (1) he is actually
innocent; (2) there is no evidence to support his
convictions; (3) the prosecution allegedly made racially
motivated and discriminatory peremptory strikes during the
jury selection process; and (4) he received ineffective
assistance of counsel. (ECF No. 9 at 2). Petitioner requests
that his conviction be reversed and remanded to the trial
court with instructions to enter a judgment of acquittal.
(Id. at 37). In response, Respondent argues that the
Court should deny Petitioner's petition because his
claims are either procedurally barred or meritless.
(See ECF No. 16).
replies that he is actually innocent because: (1) victim Jane
Doe D was murdered by her sexual abuser, and her murderer
likely was responsible for the crimes Petitioner was accused
of committing against her; and (2) many of the victims were
sexually abused by “other men, ” who likely were
responsible for the crimes Petitioner was accused of
committing against them. (ECF No. 24 at 5-6). Petitioner
avers that the prosecution did not meet its burden of proof
to uphold his convictions, and that it withheld exculpatory
evidence at trial. (Id. at 7-8). Petitioner also
makes new allegations against his trial attorneys to support
his ineffective assistance of counsel claim. (See
Id. at 9-12, 14). Finally, Petitioner requests that the
Court grant his § 2254 habeas corpus petition, and in
the alternative, grant an evidentiary hearing. (Id.
AEDPA Standard for § 2254 Habeas Cases
the Antiterrorism and Effective Death Penalty Act of 1996,
“a federal court may grant a state prisoner's
application for a writ of habeas corpus if the state-court
adjudication pursuant to which the prisoner is held
‘resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.'” Howes v. Fields, 565 U.S. 499,
505 (2012) (quoting 28 U.S.C. § 2254(d)(1)).
state court decision is contrary to . . . clearly established
[federal law] if the state court applies a rule that
contradicts the governing law set forth in [Supreme Court]
cases or if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme
Court] and nevertheless arrives at a result different from
[its] precedent.” Lockyer v. Andrade, 538 U.S.
63, 73 (2003) (internal quotation marks omitted). “It
is an unreasonable application of Supreme Court precedent
‘if the state court identifies the correct governing
legal rule from [the] Court's cases but unreasonably
applies it to the facts of the particular state
prisoner's case.'” Salts v. Epps, 676
F.3d 468, 473-74 (5th Cir. 2012) (alteration in original)
(quoting Williams v. Taylor, 529 U.S. 362, 407
obtain habeas relief under § 2254, “a state
prisoner must show that the state court's ruling on the
claim . . . was so lacking in justification that there was an
error well understood and comprehended in existing law beyond
any possibility for [fair-minded] disagreement.”
White v. Woodall, 572 U.S. 415, 419-20 (2014)
(quotation omitted). “If this standard is difficult to
meet, that is because it was meant to be.”
Harrington v. Richter, 562 U.S. 86, 102 (2011).
innocence means ‘factual innocence' and not mere
legal insufficiency.” Murray v. Davis, No.
3:16-CV-3305-L (BT), 2018 WL 3829806, at *13 (N.D. Tex. June
14, 2018) (citing Bousley v. United States, 523 U.S.
614, 623 (1998)); see also United States v. Jones,
172 F.3d 381, 384 (5th Cir. 1999). “A claim of actual
innocence must be based on reliable evidence not
presented at trial.” Murray, 2018 WL 3829806
at *13 (citing Schlup v. Delo, 513 U.S. 298, 324
(1995)). “[W]here a petitioner asserts his actual
innocence of the crime, he must show, as a factual matter,
that it is more likely than not that no reasonable juror
would have convicted him in light of the new evidence
presented in his habeas petition.” Id. at 327.
New evidence means “relevant evidence that was either
excluded or unavailable at trial.” Schlup, 513
U.S. at 328.
argues that had exculpatory evidence of medical examination
reports pertaining to two of the sexual abuse victims been
given to him at his trial, he would have been declared
innocent of the crimes. (ECF No. 9 at 7, 10). Petitioner,
however, presents no new evidence in support of his actual
innocence claim. Moreover, the evidence in the record
supports the proposition that the medical examination reports
were available and admitted into evidence at his trial.
(See ECF No. 19 at 49-58, 64). Because Petitioner
did not present newly discovered evidence that likely would
have altered the guilty verdict rendered by the jury in his
trial, his actual innocence claim must be denied. Petitioner
attempts to bolster his actual innocence claim by arguing
that he received ineffective assistance of counsel. (ECF No.
9 at 6-10). Petitioner asserts that had his attorneys
requested and presented the medical examination reports of
two of the victims at his trial, he “could have been
‘Acquitted' [sic] of the ‘false
charges.'” (Id. at 7, 9). The undersigned
addresses this ineffective assistance of counsel argument
later in the analysis. Nevertheless, Petitioner's actual
innocence claim fails.
argues that there is no evidence to support each element of
the charged crimes, and that there is no evidence to support
the jury's guilty verdict. (Id. at 11). He
asserts that there is no evidence that corroborates Jane Doe
A's testimony. (Id.). Particularly, Petitioner
argues that the prosecution failed to prove beyond a
reasonable doubt that he had the intent or knowledge to
commit the crimes of which he was convicted. (Id. at
12). Petitioner further argues that the prosecution did not
prove beyond a reasonable doubt that he penetrated the
alleged victims' sexual organs or anus. (Id.).
addressing the merits of this claim, the undersigned notes
that Petitioner is procedurally barred from asserting it
because he did not raise this claim in his PDR to the TCCA.
(See ECF No. 16 at 9; ECF No. 18 at 1507-42; ECF No.
19 at 2-3). Under 28 U.S.C. § 2254(b), “[a]
petitioner must fully exhaust state remedies before seeking
federal habeas relief.” To exhaust in accordance with
§ 2254, a petitioner must fairly present the factual and
legal basis of any claim to the highest available state court
for review prior to raising it in federal court. Deters
v. Collins, 985 F.2d 789, 795 (5th Cir. 1993);
Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir.
1985); Carter v. Estelle, 677 F.2d 427, 443 (5th
Cir. 1982). In Texas, a prisoner must present his claim to
the TCCA in a PDR or an application for writ of habeas
corpus. Bautista v. McCotter, 793 F.2d 109, 110 (5th
Cir. 1986); Richardson, 762 F.2d at 432. As a matter
of comity, the state courts must have a fair opportunity to
hear and consider the claims raised by an applicant before
those claims are heard in federal court. Picard v.
Connor, 404 U.S. 270, 275 (1971). Because Petitioner did
not give the TCCA a fair opportunity to hear and consider
this claim, he is procedurally barred from asserting it.
Petitioner's no evidence claim were not procedurally
barred, it is unpersuasive. When considering a no evidence
claim, a federal court must consider whether in viewing the
evidence “in the light most favorable to the
prosecution, any rational trier of fact could have found the
existence of facts necessary to establish the essential
elements of the offense beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
“This standard is applied with “explicit
reference to the substantive elements of the criminal offense
as defined by state law.” Dupuy v. Cain, 201
F.3d 582, 589 (5th Cir. 2000) (internal quotations omitted).
The elements of aggravated sexual assault are:
the person . . . (B) regardless of whether the person knows
the age of the child at the time of the offense,
intentionally or knowingly: (i) causes the penetration of the
anus or sexual organ of a child by any means . . . (iii)
causes the sexual organ of a child to contact or penetrate
the mouth, anus, or sexual organ of another person, including
the actor . . . and (2) if . . . (B) the victim is younger
than 14 years of age, regardless of whether the person knows
the age of the victim at the time of the offense . . . .
Tex. Penal Code § 22.021(a) (West 2011). The elements of
indecency with a child by contact are:
(a) A person commits an offense if, with a child younger than
17 years of age, whether the child is of the same or opposite
sex and regardless of whether the person knows the age of the
child at the time of the offense, if the person: (1) engages
in sexual contact with the child or causes the child to
engage in sexual contact; or (2) with intent to arouse or
gratify the sexual desire of any person: (A) exposes the
person's anus or any part of the person's genitals,
knowing the child is present; or (B) causes the child to
expose the child's anus or any part of the child's
Tex. Penal Code § 21.11(a) (West 2011).
applying the Texas criminal statutes to the evidence
presented at Petitioner's trial, there is ample evidence
to support the jury's guilty verdict for both crimes. For
instance, although Petitioner alleges that his trial
attorneys did not request a medical examination report for
Jane Does A and C and that this “exculpatory
evidence” was not presented at his trial, a medical
examination report as to both Jane Does A and C is in the
record. (See ECF No. 19 at 49-58). Bolstering the
fact that medical examination reports were available during
the trial is the affidavit of ...